Written evidence submitted by the British
Association for Adoption and Fostering (FC 42)
THE OPERATION OF THE FAMILY COURTS
CAFCASS
1. BAAF are members of the Interdisciplinary
Alliance for Children and have signed up to and support the Alliance's
submission on the subject of CAFCASS.
LEGAL AID
2. The number of solicitors accredited by the
Law Society to represent children in court has fallen steadily;
care work is complex, emotionally demanding and quite poorly remunerated
and few newly qualified solicitors are attracted to this area
of practice. As experienced childcare lawyers retire there are
few junior solicitors able to fill the gap.
3. The recent awarding of family legal aid contracts
to only 46% of the firms currently practising in the field will
lead to further difficulties in families finding appropriate legal
advice. We are aware that already in some areas there are insufficient
numbers of specialist practitioners available. In care proceedings
there can easily be a group of children, a mother, two fathers
and an interested relative all needing representation from separate
solicitors' firms. The difficulties which lead a local authority
to initiate care proceedings, commonly drug or alcohol misuse,
mental illness or learning difficulties, are issues which mitigate
against a parent being able to find, contact, travel to and instruct
a solicitor where there is no local provision. Courts will often
be asked to adjourn hearings to allow a parent more time to find
legal advice, balancing the parent's right to a fair trial against
the need of a child for intervention and protection.
4. Financial pressures placed on those firms
who have been awarded legal aid contracts mean that there are
concerns that the need to maintain a high turnover of cases will
lead to compromises in the quality of representation afforded
to parents in care proceedings. Many of these parents are vulnerable
adults who need significant time and care to understand the legal
position that they are in and to enable them to mount any sort
of challenge to the local authority.
5. A system which places vulnerable parents in
a position where they have to attend proceedings at which they
could be separated permanently from their children does not provide
justice for the parent or for the child. An unrepresented parent
is unlikely to be able to understand or participate fully in care
proceedings. They are unlikely to be able to identify which are
the most relevant issues in the case and which can go unchallenged.
An unrepresented parent dramatically increases the time needed
for every court hearing and reduces the chances of agreement on
even the most minor and administrative questions.
6. A further concern is the growing number of
McKenzie Friends working with parents who have been unable to
find suitable representation. While some of these are genuinely
helpful and supportive of parents, some have used their role to
refight their own cases or to focus on their own issues with social
services. The best McKenzie Friend is no adequate substitute for
proper legal representation, and the worst can ruin any chance
the parents have of resolving their difficulties and reunifying
their families.
7. In care and adoption proceedings the courts
are making decisions which can separate a parent and child permanently,
with lifelong consequences for both. It is difficult to imagine
that any other area of court work has a greater need for the involvement
of appropriately qualified and experienced legal representation.
MEDIATION
8. Mediation can be a useful way of reaching
agreement in private law proceedings where separated parents have
to find a way of continuing to be the child's parents. However,
in public law and adoption proceedings there is no middle ground
on which the parties can meet; one party is claiming that the
parents are no longer able to be the child's parents.
9. The introduction of the Public Law Outline
was meant to reduce the need for or scope of care proceedings
by requiring the local authority to complete all assessments before
issuing proceedings and to issue a formal letter before proceedings.
The effectiveness of this has to a certain extent been undermined
by the restriction on the provision of legal advice pre-proceedings.
10. There may be scope for mediation in some
areas, for instance contact during proceedings if the child has
been removed from his parents' care, but there must be a concern
that it other areas the introduction of mediation has been accompanied
by an expectation that it be carried out without the need for
legal representation. Given the frequent vulnerability of the
parents and the inequality of power between the parents and the
local authority there should be no reduction in the availability
or funding of legal representation as a consequence of any introduction
of mediation.
OPENNESS OF
THE FAMILY
COURTS
11. We have not had any reports of any adverse
consequences of the current level of press access to the family
courts, but await the outcome of the piloting of publication of
lower court judgements.
12. We remain concerned that any scheme for opening
up the family courts must have the interests of the child as its
highest priority. Children must feel confident that they will
not be identified as the subject of any proceedings and that the
details of their family's private life and personal difficulties
will not be publicised. Children must not be inhibited in disclosing
their difficulties and participating in assessments by a fear
that their friends and neighbours or the wider community will
be able to read reports of the resulting court proceedings.
13. The need for confidentiality is particularly
important in adoption proceedings. There must be no possibility
of the child's permanent placement being disrupted by the fear
of interference by the birth family.
14. Children concerned in care proceedings are
opposed to press access to the courts, as are the majority of
the professionals involved in the court process. Access appears
to have been granted as a response to press demand with the justification
of increasing public confidence in the family court system.
15. Alternative methods of educating the public
and increasing confidence in the family justice system do not
appear to have been properly considered.
16. The child's welfare, in this as in all other
aspects of the family justice system, should be the paramount
consideration.
September 2010
|